Jones v. City of Greensboro, 8018SC728

Citation51 N.C.App. 571,277 S.E.2d 562
Decision Date05 May 1981
Docket NumberNo. 8018SC728,8018SC728
CourtCourt of Appeal of North Carolina (US)
PartiesR. W. JONES v. The CITY OF GREENSBORO, Paul B. Calhoun, The Greensboro Police Department, S. H. "Sam" Briggs, L. W. Wrenn, R. E. Apple, and The Greensboro Coliseum Complex.

Max D. Ballinger, Greensboro, for plaintiff-appellant.

Nichols, Caffrey, Hill, Evans & Murrelle by Joseph R. Beatty, Greensboro, for defendants-appellees.

HEDRICK, Judge.

Plaintiff first assigns error to the order allowing defendants' motion for summary judgment with respect to plaintiff's claims for relief nos. 1, 2, 5, 6, 7, 8, and 9.

G.S. § 1-54, the one-year statute of limitations, in pertinent part provides:

Within one year an action or proceeding

(3) For libel, slander, assault, battery, or false imprisonment.

The record before us demonstrates, as did the record before the trial court at the time of the hearing on defendants' motion to dismiss and for judgment on the pleadings and, in the alternative, for summary judgment, that plaintiff's alleged claims for false arrest (first claim for relief), false imprisonment (second claim for relief), assault (sixth claim for relief), and libel of the first warrant (seventh claim for relief) were all barred by the one-year statute of limitations, G.S. § 1-54, since these alleged claims against defendants were commenced on 3 April 1975, and the incidents giving rise to these alleged claims occurred on 10 February 1974, more than one year earlier.

Plaintiff contends, however, that a longer statute of limitations controls in the present case, apparently with respect to defendant City of Greensboro. Plaintiff argues that the appropriate statute of limitations is the two-year statute, G.S. § 1-53, which provides that "(a)ll claims against counties, cities and towns of this State" must be brought within two years after the "maturity of such claims." Yet, plaintiff concedes that her position is contrary to past decisions in this State, most notably Dennis v. City of Albemarle, 242 N.C. 263, 87 S.E.2d 561 (1955), which hold that G.S. § 1-53 does not apply to tort actions. In support of her argument, plaintiff cites G.S. § 1-539.15, which does provide for a two year statute of limitations in claims against municipalities, including claims in tort; this statute, however, did not become effective until 1 October 1975, after the incidents giving rise to plaintiff's action occurred and indeed after plaintiff's action had been commenced. See 1975 N.C.Sess. 583 Laws, Ch. 361, § 3. G.S. § 1-539.15 is thus not controlling. We see no reason under the circumstances of this case to reach a different conclusion than the court in Dennis v. City of Albemarle, supra. Plaintiff also argues that certain provisions of the Charter of the City of Greensboro relating to notice and to maintenance of suits against the city dictate a longer limitations period; the Charter, however, provides that these provisions should not be construed to prevent any statute of limitations from commencing to run at the time the claim accrued, or to interfere with the running of any statute of limitations. Plaintiff's contentions as to a longer statute of limitations are therefore meritless.

Plaintiff's fifth claim for relief, conspiracy, would not be barred by the one-year statute of limitations, since the claim alleges a continuing conspiracy on the part of defendants up to the time the trial on the second warrant was "nonsuited" on 26 June 1974, less than one year before plaintiff filed her complaint on 3 April 1975. Plaintiff would nevertheless be precluded from maintaining this claim.

In Daniel Boone Complex, Inc. v. Furst, 43 N.C.App. 95, 258 S.E.2d 379 (1979), disc. rev. denied, 299 N.C. 120, 261 S.E.2d 923 (1980), Judge Erwin, speaking for this Court, said:

An action for civil conspiracy will lie when there is an agreement between two or more individuals to do an unlawful act or to do a lawful act in an unlawful way, resulting in injury inflicted by one or more of the conspirators pursuant to a common scheme. (Citations omitted.)

Id., at 103, 258 S.E.2d at 386.

Such an action is not one for damages caused by the conspiracy itself, but is one for damages caused by acts committed pursuant to a formed conspiracy; the charge of conspiracy itself does nothing more than associate defendants together and perhaps liberalize the rules of evidence to the extent that under proper circumstances the acts and conduct of one defendant might be admissible against all. Shope v. Boyer, 268 N.C. 401, 150 S.E.2d 771 (1966).

In the present case, plaintiff has alleged generally that defendants assaulted, falsely arrested, falsely imprisoned, libeled, and maliciously prosecuted her, as well as abusing process with respect to her. In addition, plaintiff has alleged generally that defendants conspired to do all these things. Yet plaintiff uses the same alleged acts committed by defendants to support her conspiracy claim as she uses to support her claims for assault, false arrest, false imprisonment, libel, malicious prosecution, and abuse of process. Plaintiff cannot, however, use the same alleged acts to form both the basis of a claim for conspiracy to commit certain torts and the basis of claims for those torts. Since the trial court allowed plaintiff to maintain the other claims, except those barred by the statute of limitations, or by absolute privilege as hereinafter discussed, the court properly entered summary judgment for defendants on plaintiff's claim for conspiracy.

Plaintiff's eighth claim for relief, libel of the second warrant, would not be barred by the one-year statute of limitations, since the second warrant was not issued until 3 April 1974, and plaintiff's complaint was filed 3 April 1975. The record discloses, however, an insurmountable bar to plaintiff's eighth claim, based upon absolute privilege. In actions for defamation, an absolute privilege attends communications made in the due course of judicial proceedings, Mazzucco v. N. C. Board of Medical Examiners, 31 N.C.App. 47, 228 S.E.2d 529, disc. rev. denied and appeal dismissed, 291 N.C. 323, 230 S.E.2d 676 (1976), and thus such communications will not support an action for libel. Jarman v. Offutt, 239 N.C. 468, 80 S.E.2d 248 (1954). The term "judicial proceeding" is not restricted to trials in civil actions or criminal prosecutions, but includes every proceeding of a judicial nature before a competent court or before a tribunal or officer clothed with judicial or quasi-judicial powers. Jarman v. Offutt, supra. Moreover, statements in pleadings and other papers filed in a "judicial proceeding" which are relevant or pertinent to the subject matter in controversy are cloaked with this absolute privilege. Scott v. Statesville Plywood & Veneer Co., 240 N.C. 73, 81 S.E.2d 146 (1954). In the present case, the record demonstrates that a "judicial proceeding" encompassed the second warrant from the time of its issuance through the trial ending in nonsuit, and clearly the statements in the warrant were relevant and pertinent to the subject matter in controversy. Thus, an absolute privilege attached to the warrant such that plaintiff's alleged claim for libel because of the second warrant was barred by such privilege.

Summary judgment for defendants with respect to plaintiff's first, second, fifth, sixth, seventh, and eighth claims for relief must therefore be affirmed. The propriety of summary judgment in defendants' favor on plaintiff's ninth claim for relief will be discussed elsewhere in this opinion.

Plaintiff's second assignment of error is set out in the record as follows: "The Court erred in allowing defendants' motion for a protective order in answering the plaintiff's interrogatories and in ruling on defendants' motion for summary judgment prior to compelling the defendants to answer the interrogatories." We fail to see, however, how the court could have committed prejudicial error by these actions. As indicated previously, summary judgment for all defendants with respect to plaintiff's claims for relief nos. 1, 2, 6, and 7 was based on the statute of limitations, while summary judgment for all defendants on plaintiff's eighth claim was based upon absolute privilege. The answers to the interrogatories, on the other hand, did not relate to the time of the commencement of the action or the occurrence of the events upon which these claims were based, nor did they relate to any matters regarding libel or absolute privilege. Summary judgment was also granted for defendants on plaintiff's fifth claim, and the answers to the interrogatories would not have shed any light on that claim. Plaintiff has failed to show any prejudicial error, and thus this assignment of error is without merit.

Plaintiff's third and fourth assignments of error relate to the denial of her motions to amend her complaint. A motion to amend is addressed to the discretion of the trial court, and the trial court's ruling thereon is not reviewable on appeal in the absence of a showing of abuse of discretion. G.S. § 1A-1, Rule 15(a); Helena Chemical Co. v. Rivenbark, 45 N.C.App. 517, 263 S.E.2d 305 (1980); Willow Mountain Corp. v. Parker, 37 N.C.App. 718, 247 S.E.2d 11, disc. review denied, 295 N.C. 738, 248 S.E.2d 867 (1978). Plaintiff has shown no abuse of discretion on the part of the trial court in denying her motions to amend, and thus the court's rulings are not reviewable. This assignment of error is without merit.

Plaintiff's fifth assignment of error is set out in the record as follows: "The Court erred in allowing defendants' Paul B. Calhoun's, City of Greensboro's, and the Greensboro Coliseum Complexes' (sic) motion for summary judgment as to all remaining causes of action." Plaintiff has not advanced any argument with respect to this assignment of error. It is therefore deemed abandoned. Rule 28(a), Rules of Appellate Procedure; State v. Moore, 301 N.C. 262, 271 S.E.2d 242 (1980).

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